I really am the person you don’t want to be left sitting next to at the end of an evening in the pub: “and another misconception about amending section 106 agreements…”
This weekend I belatedly set about unpicking that recent Kimblin J judgment in Lancaster City Council v Secretary of State (High Court, 18 February 2026). The case was a legal challenge by the council to an inspector’s decision letter. The inspector had allowed a section 73 appeal that sought to amend a condition attached to a planning permission for the development of 24 homes. The condition required that the housing mix across the site be implemented in accordance with an approved accommodation schedule which was specifically referenced. The proposal was to amend the condition, on grounds of viability, so as to refer to a revised accommodation schedule, which (unlike that which had been previously approved) referred to all of the dwellings for sale in the open market rather than a proportion being affordable. In so doing he had taken into account a deed of variation agreed between the parties which removed from the existing section 106 agreement an obligation that at least 30% of the dwellings be affordable, whilst still requiring the payment of an open space obligation and setting out a mechanism for the provision and ongoing maintenance of certain areas within the proposed development.
Despite having entered into the deed of variation in the course of the appeal, the council’s ground for challenging the inspector’s decision was that somehow in concluding as part of his decision whether it was appropriate for the parties to enter into the deed of variation he should have applied the test in section 106A of the Town and Country Planning Act 1990 which is higher than the test to be applied under section 73 as to whether a planning permission condition should be discharged or amended, namely as to whether the original section 106 agreement continued to serve a useful purpose and if so whether it would serve that purpose equally well subject to the modifications in the deed of variation.
The judge sensibly rejected that argument and upheld the permission.
The case possibly does illustrate what we know the government has become vexed about: section 73 applications and appeals being used as a “Trojan horse” to achieve variations to section 106 agreements (albeit there does not appear to me to be anything wrong in law with that approach – equivalent to what happened in the Cuba Street appeal I referred to in my 8 October 2025 blog post London Stalling).
But more directly, it also triggered a different peeve: those local planning authorities that insist that any proposal for a section 106 deed of variation be the subject of a formal application under section 106A, with application form to be completed, notices served etc. This is just yet another example of procedural gold-plating or maybe just a misconception as to how section 106A works.
I think I need to set out relevant parts of the section:
“106A Modification and discharge of planning obligations.
(1 ) A planning obligation may not be modified or discharged except—
by agreement between the authority by whom the obligation is enforceable […] and the person or persons against whom the obligation is enforceable; or
in accordance with
(i)this section and section 106B […]
(2) An agreement falling within subsection (1)(a) shall not be entered into except by an instrument executed as a deed.
(3) A person against whom a planning obligation is enforceable may, at any time after the expiry of the relevant period, apply to the local planning authority by whom the obligation is enforceable […] for the obligation—
to have effect subject to such modifications as may be specified in the application; or
to be discharged.
(4) In subsection (3) “ the relevant period ” means—
such period as may be prescribed; or
if no period is prescribed, the period of five years beginning with the date on which the obligation is entered into.
(5) […]
(6) Where an application is made to an authority under subsection (3), the authority may determine—
a. that the planning obligation shall continue to have effect without modification
b. if the obligation no longer serves a useful purpose, that it shall be discharged; or
c. if the obligation continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications.”
It will be seen that the general position is that a planning obligation (i.e. section 106 agreement or unilateral undertaking) may be modified or discharged (i.e. in practice the subject of a deed of variation) simply by agreement between the local planning authority and those bound by the existing document, with no prior procedural requirements and no specific test for the local planning authority to address before so agreeing.
What section 106A(3) on the other hand enables is a formal application to be made by a party against whom the obligation is enforceable, if the planning obligation is at least five years old (the government could prescribe a different period for the purposes of sub-section (3) but so far hasn’t) . If it does that, there is the specific test in subsection (6) for the authority to apply before determining whether to grant the application. If the authority refuses the application or doesn’t determine it within the statutory period the applicant can appeal to the Secretary of State pursuant to section 106B (for a recent example of a decision in relation to such an appeal see here).
Not only does this explain for the purposes of the Lancaster case why the subsection (6) test was entirely inappropriate but it also identifies why authorities should not insist upon a formal application process where the person requesting the variation is not proceeding by way of subsection (3).
Of course, this does mean that, unless there is a specific publicity commitment set out in the relevant authority’s constitution or statement of community involvement, the local community may not have sight of any proposed deed of variation before it is completed. However in my view this is neither required directly by Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 or as a result of the Court of Appeal’s judgment in R (Greenfield (IOW) Limited v Isle of Wight Council (Court of Appeal, 16 April 2025) – a case which in my view has led to further unnecessary delays in the completion of agreements and the issue of planning permission but…
… I see that last orders have been called and I think you quietly moved away to another table some time ago now.
Thank you also to my Town Legal partner Patrick Robinson who spotted this hand-down yesterday from the Planning Court: Armstrong v Secretary of State (Deputy High Court Judge James Strachan KC, 27 January 2023).
Who is Mr Armstrong? Well Mr Armstrong had the benefit of a planning permission for the erection of a new dwelling in Cornwall with the wonderful address of The Beach House, Finnygook Lane, Portwrinkle. The planning permission dated back to 2007 but had been kept alive by way of minor implementation works.
A house had previously stood on the site. This photograph from the application documentation on Cornwall Council’s planning portal gives a sense of its dramatic location:
Mr Armstrong made an application under section 73 of the Town and Country Planning Act 1990 to vary the approved scheme, by way of amendment of a condition which listed the approved drawings (a condition which had been added by way of section 96A, to enable use of section 73 – the now familiar approach following Finney (if any non planners or planning lawyers are still reading, you must think we are all mad)).
The application was refused by Cornwall Council, with one reason for refusal:
“The proposed development seeks to change the design of the dwelling approved via, E2/06/01798/FUL, from an irregularly-shaped boldly modernist dwelling to a dual-pitched alpine lodge style dwelling. The application site occupies a highly prominent and sensitive coastal plot. The proposed revised design completely alters the nature of the development and would result in a development that would differ materially from the approved permission. As a result this proposal goes beyond the scope of Section 73 of the Town and Country Planning Act 1990 and is contrary to guidance within the National Planning Practice Guidance, specifically paragraph 001 Reference ID: 17a- 001-20140306.”
There are these images of the approved and proposed schemes, courtesy of Cornwall Council’s planning portal:
(Whilst not relevant to the legal issues, I note that the proposed revisions to the scheme would cause it more closely to resemble the dwelling that had previously been on the site).
Mr Armstrong appealed. His appeal statement made these (entirely correct) points:
“a. although an application under section 73 of the 1990 Act is sometimes referred to as an application to make a “minor material amendment”, the terms of section 73 of the 1990 Act are not limited in that way and place no restriction on the magnitude of the changes that can be sought;
b. reference had been made by the Courts in the consideration of section 73 of the 1990 Act to not permitting amendments which amount to a fundamental alteration to the terms of a planning consent, but there was nothing of a fundamental nature such as scale, size, massing or footprint and positioning on the Site which would result in any significant change;
c. section 73 applications still receive the same amount of scrutiny as a full planning application and the process does not prejudice the ability for relevant parties to make representations”.
The appeal was determined by way of written representations. The inspector determined the main issue to be: “whether the proposal could be considered as a minor material amendment under section 73 of the TCPA 1990“.
(Alarm bells already…)
The inspector’s analysis includes the following passages:
“The original planning permission was for a bespoke dwelling in a contemporary architectural style, with the external materials being natural stone and cedar cladding. The approved plans show a multi-faceted building, with an organic form, including curved walls and sedum-covered roofs. By contrast, the proposed plans submitted with the section 73 application show a dwelling with a simple rectilinear form, rendered walls and a pitched slate roof. Consequently, although it is similarly sited, and has a comparable floorspace and volume, it is fundamentally different in its design, bearing virtually no resemblance to the approved building. The modifications are, therefore, substantial.
The appellant contends that the term “minor material amendment” infers that material changes are allowable under a section 73 application. However, the word “minor” qualifies the extent to which material changes should be considered via this route. In this case, the wholesale redesign of the house results in a development that would be of a substantially different nature than the one originally approved. In these circumstances, the PPG advises that a new planning application is necessary.”
He dismissed the appeal.
Thankfully, Mr Armstrong didn’t give up on the entire pettyfogging planning system at that point but, as a litigant in person, challenged the decision in the High Court.
And, as was only right in the face of this sort of reasoning from the inspector, he won! And in so doing, has provided further judicial authority for what planning lawyers end up saying again and again – the limits of section 73 are not confined by the question of whether there would be a minor material amendment to the approved scheme, but whether there would be a fundamental variation to the approved scheme (as that is the test previously set down in Arrowcroft and subsequent cases).
Deputy High Court Judge James Strachan KC’s gave no fewer than eight reasons why the inspector’s decision was unlawful:
“First, I consider the correct starting point must be the words of section 73 of the TCPA 1990 itself. As the Defendant accepts, there is nothing in section 73, or in the TCPA 1990, that limits its application to “minor material amendments”, or to amendments which do not involve a “substantial” or “fundamental” variation. On the face of the words used, s.73 applies to any application for planning permission for development of land “without complying with conditions subject to which a previous planning permission was granted” (see s.73(1)). It limits the local planning authority’s consideration to the “question of conditions subject to which planning permission should be granted (see s.73(2)). There are other limitations as to its scope such as those in ss73(4) and (5), but they are not engaged here. There is nothing in the language used that restricts an application to vary or remove a condition to “minor material amendments”, or to what a decision-maker considers to be a “non-fundamental variation”. I accept that the absence of such a limitation on the face of the statute does not automatically mean that such limitations cannot arise as a matter of statutory interpretation, in accordance with well-established principles requiring one to consider the meaning of a statute and its statutory purpose. However it is an important starting point that, on the face of the statute, provided the application is limited to non-compliance with a condition (rather than any other part of the permission) it falls within the stated scope of s.73 of the TCPA 1990.
Second, as now properly understood in light of Finney, the requirement that a s.73 application be confined to applications for non-compliance with a condition is significantly restrictive in and of itself. There is no obvious need, justification or statutory purpose for reading in additional restrictions which are not expressed on the face of the statute. Finney confirms that section 73 cannot be used to vary the operative part of a planning permission. It is a section concerned with non-compliance with condition, rather than the operative part of a permission. One therefore cannot use s.73 to vary or impose a condition where the resulting condition would be inherently inconsistent with the operative part of the planning permission; that would also involve effective variation of the operative part of the planning permission as well. That point was exposed clearly in Finney where the resulting varied condition caused the Inspector to omit the conflicting words in the description of development in her decision. The power under s.73 is therefore a limited one (as briefly observed in Hillside). But in such circumstances, it is difficult to see why it is necessary to introduce or read in further limits on its scope which are not otherwise expressed in the section itself. If, as accepted to be the case here, an application for non-compliance with a condition does not lead to any conflict or inconsistency with the operative part of the permission, it is difficult to see why it is objectionable in light of the statutory purpose of section 73 and the TCPA 1990 itself.
Third, section 73 is clearly intended to be a provision which enables a developer to make a section 73 application to remove or vary a condition, provided of course that the application does not conflict with the operative part of the planning permission. Any such variation application will be subject to the necessary procedural requirements for its consideration which, for example, enable representations to be received. If Parliament had intended the power to restrict its application further (for example to limit it to “minor material” amendments to a condition, or non-fundamental variations to a condition) one would have expected that to be expressed in the language used and it could readily have done so.
Fourth, and linked to the preceding point, the wording of section 96A of the 1990 Act is informative as part of the statutory context. Unlike section 73 which limits its application to conditions, section 96A was introduced as a power to amend a planning permission generally (including the operative part of the permission). But in introducing that power that is applicable to any part of a permission, Parliament expressly constrained its scope to “non-material amendments”. By contrast, no such limitation has been imposed on the scope of s.73 where it is applicable, but with the fundamental difference that s.73 is confined in scope to applications for non-compliance with conditions (rather than non-compliance with the operative part of a permission). From the perspective of statutory interpretation taking account of the statutory context, this is yet a further indication that if Parliament had wished to limit the power under s.73 to “minor material amendments” or so prevent “fundamental variations” to conditions, it would have done so expressly.
Fifth, the effect of giving the words used in s.73 their plain and ordinary meaning so as to allow an application to be made for non-compliance with any planning condition which is not in conflict with the operative part of permission does not, of course, dictate the outcome of that application. It simply means that the application can be entertained. Any such application would then fall to be determined on its planning merits. In this case, for example, the Inspector considered there to be a fundamental difference in the proposed aesthetics of the design shown in the drawings identified in Condition 10 and the proposed plans. That may well be the inevitable result of an application made under s.73. But provided there is no inherent conflict or inconsistency with the “operative part” of the planning permission – in this case the construction of a single dwelling – the planning merits of that proposed change can be assessed on its merits. No such assessment has occurred. As part of that assessment, the decision-maker will be able to consider whether the proposed change (fundamental or otherwise) is acceptable or not in planning terms, taking account of any representations received.
In this respect, I recognise that in Finney, arguments as to the ability to consider the merits of s.73 application in this way (with attendant publicity) was not seen as a factor justifying giving s.73 the more expanded interpretation that the developer and Welsh Ministers had advocated in that case. There is an important difference. There, such arguments were advanced to try and justify giving s.73 a more extended interpretation than its words supported so as to permit effective changes to the operative part of a planning permission. Here, the situation is reversed. The ability to consider the merits of any change to a condition that falls within the ordinary and natural scope of the language used in s.73 points away from the need to read in additional restrictions to the scope of the statutory provision.
Sixth, I do not consider that any of the caselaw materially supports the Defendant’s attempt to restricting the scope of s.73 to “minor material amendments” or non-fundamental variations where there is no conflict with the operative part of the permission. To the contrary, it is more consistent with giving the words of s.73 their plain and ordinary meaning.
….
Seventh, if I am wrong and section 73 is implicitly qualified so as to preclude applications which do not involve any conflict with the operative part of a permission, but do involve what the decision maker considered to be a fundamental variation, I am not convinced that the Inspector has properly addressed the question of what would constitute a fundamental variation in this context.
…
Eighth, even if a test of fundamental variation is a lawful one to apply, I am not persuaded that the Inspector applied such a test in this case. In my judgment there is more than sufficient doubt about that to justify quashing the decision on the basis that he misdirected himself by reference to the PPG and its concept of “minor material amendments”.”
The inspector’s decision letter was quashed and the appeal will now be redetermined. Stick with it, Mr Armstrong.
SIMONICITY 